Shared Electric Micromobility Permit Program FY2025 Permit

Agency:	City of Berkeley
State:	California
Type of Government:	State & Local
Posted Date:	Mar 12, 2024
Due Date:	Apr 11, 2024
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City of Berkeley, Public Works – Transportation Division

Shared Electric Micromobility Permit Program – Terms, Conditions, and Application ‐ March 2024

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City of Berkeley: Shared Electric Micromobility Permit Program (SEMPP)

Application

I. Introduction

The City of Berkeley has seen significant growth in new mobility services, from on‐demand ridehailing

services to app‐enabled transportation options like car sharing and bicycle sharing. The accelerated

development of these technologies has the potential to dramatically shape cities in the next few

decades. New mobility services can help the City achieve its goals in equity, livability, and sustainability;

however, new technologies can also be disruptive and leave the marginalized further and further

behind. The purpose of the regulations herein is to maximize public benefits while mitigating negative

impacts through the issuance of permits for the deployment of shared electric micromobility devices

(“Devices”) within the City of Berkeley (the “City”). Below are the Cityʼs goals, deﬁni ons, terms and

conditions, and application procedure for the Shared Electric Micromobility Permit Program.

II. Permit Goals

• Provide dockless shared electric micromobility devices as an option for City of Berkeley residents.

• Diversify mobility options of residents, employees, and visitors to Berkeley.

• Protect public health and safety.

• Avoid waste by ensuring the Devices in Berkeley are robust enough for commercial use.

• Avoid sidewalk, pathway, and pedestrian ramp blockages.

• Reduce emissions from short trips and connections to transit.

• Maximize user awareness of safe and legal behaviors for operating shared mobility devices.

• Create an enforceable framework for managing shared mobility services.

• Ensure use of the Public Right of Way (PROW) benefits public mobility.

• Ensure private operators respond to pervasive issues and service complaints.

III. Definitions

(A) “Adaptive Shared Electric Micromobility Device” or “Adaptive Device” means an electric‐assisted

scooter, tricycle, or bicycle that is accessible to people with various physical disabilities. Adaptive

Devices must include three wheels (or be self‐balancing), a seat, and a basket or storage area large

enough to hold a cane. When used in this document, the terms Shared Electric Micromobility Device

or Device shall include an Adaptive Device unless otherwise noted.

(B) “Amenity Zone” is the portion of the sidewalk between the curb and the Pedestrian Zone in which

street furniture and amenities, such as lighting, benches, utility poles, tree wells, and bicycle

parking, are provided. It is located between the curb and the Pedestrian Zone of the sidewalk. (See

Berkeley Pedestrian Plan Figure B‐2.)

(D) “Equity Priority Communities” means the most recent census tracts or block groups designated as

City of Berkeley, Public Works – Transportation Division

Shared Electric Micromobility Permit Program – Terms, Conditions, and Application ‐ March 2024

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Equity Priority Communities by the Metropolitan Transportation Commission.

(E) “Deployment” means the placement of devices by the Shared Electric Micromobility system

operator.

(F) “Indemnitee” means the individual or entity that is being indemnified and held harmless by another.

(G) “Pedestrian Zone” is the portion of the sidewalk for walking and pedestrian travel. (See Berkeley

Pedestrian Plan Figure B‐2.)

(H) “Roadway” is defined in Section 530 of the California Vehicle Code or any successor statute.

(I) “Shared Electric Micromobility Device” or “Device” means an electrically‐powered device for short‐

term rental for point‐to‐point trips where, by design of the shared electric micromobility operator,

the device is intended to remain in the public‐right‐of‐way, even when not being rented, and is not

required to be docked in a designated docking station for rental. “Devices” include electric‐assisted

scooters and bicycles.

(1) “Device(s)” may include:

(a) “Electric Scooter” or “Scooter” – any two‐wheeled device that has handlebars, has a

floorboard that is designed to be stood upon when riding, and is powered by an

electric motor, as defined in Section 407.5 of the California Vehicle Code;

(b) “Electric Bicycle” or “Bicycle” – A Class 1 Electric Bicycle or Class 2 Electric Bicycle as

defined in Section 312.5 of the California Vehicle Code;

footrest and an electric motor of no more than 750 watts; or

(d) “Electric Tricycle” – a three‐wheeled device with a seat and an electric motor of no

more than 750 watts.

(J) “Shared Electric Micromobility System Operator” or “Operator” is an entity that owns and/or

operates a Shared Electric Micromobility System in the public‐right‐of‐way. The term includes any

employee, agent, or independent contractor hired or retained by the Operator.

(K) “Shared Electric Micromobility Permittee” or “Permittee” is an entity that is issued a Permit by the

City to operate a Shared Electric Micromobility System in the public‐right‐of‐way.

(L) “Shared Electric Micromobility Permit Program” or “Program” means the program under which the

permit system is regulated.

(M) “Shared Electric Micromobility System” or “System” means a system providing Devices as defined

above.

(N) “Shared Electric Micromobility User”, “User” or “Customer” is any person that uses, rents, or rides a

Shared Electric Micromobility Device or is a customer of the Operator.

(O) “University” is the University of California, Berkeley.

IV. Permit Terms and Conditions

(A) Purpose ‐ The purpose of this document is to establish requirements that govern and permit the

City of Berkeley, Public Works – Transportation Division

Shared Electric Micromobility Permit Program – Terms, Conditions, and Application ‐ March 2024

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operation of a Shared Electric Micromobility System in the City, and to provide a regulatory

framework for the City’s Shared Electric Micromobility Program (hereinafter “Program”). These

terms and conditions are issued pursuant to BMC 14.63.050(B).

(B) Authority ‐ The Public Works Department, acting through its Shared Electric Micromobility Program

staff, is authorized to issue system operator Permits to operators who submit applications and fulfill

all requirements of BMC Chapter 14.63 and terms and conditions stated herein, including payment

of all fees, fines, and penalties to operate such systems and to administer all aspects of the Program

Permits on an annual basis. At the sole discretion of the City, Permit requirements may be adjusted

to accommodate changing technology, needs, and priorities.

(D) Modifications ‐ The City Manager may promulgate additional or revised regulations governing

systems, including but not limited to designating locations for dedicated parking devices in the

public right‐of‐way.

(E) Relationship to City ‐ In rendering service, hereunder, the Operator shall be and remain an

Independent Contractor. It is expressly understood and acknowledged by the parties that any

amounts payable hereunder shall be paid in gross amount, without reduction for penalties, taxes, or

charges. Operators are responsible for assuming any applicable federal or state withholding taxes,

estimated tax payments, or any other fees or expenses whatsoever.

(1) Permits issued under this program are not to be assigned or delegated to a substitute

provider, a successor in interest, or a purchaser of the Permit without express written

permission by the City.

(2) The City reserves the right to terminate Permits at any time and require the operator to

remove their entire fleet of Devices from City streets. An operator will have thirty (30) days

to remove the entire fleet from City streets.

(F) Non‐transferability ‐ A Permit may not be transferred without prior written approval of the City

Manager. Operator shall promptly notify the City of any changes to the Operator’s corporate

structure or ownership. Failure to do so shall be cause for revocation of the Permit. “Transfer” shall

include the sale or other exchange of fifty percent (50%) or more of the ownership or control of a

Permittee to a third party.

(G) Indemnification ‐ Operator/Permittee, by acceptance of the Permit, agrees and promises:

(1) Without limiting or otherwise waiving liability for the acts or omissions of the parties

hereto, and to the greatest extent permitted by law including, without limitation, California

Civil Code sections 1668 and 2772, et seq., to defend, indemnify, and hold harmless City

and each of its respective Councilmembers, officers, directors, partners, agents, and

employees (each of which persons and organizations are referred to collectively herein as

“Indemnitees” or individually as “Indemnitee”) from and against any and all liabilities,

claims, lawsuits, actions or causes of action, losses, demands, debts, liens, costs,

judgments, obligations, administrative or regulatory fines or penalties, and expenses,

including, but not limited to, reasonable attorney's fees (both in‐house and outside

City of Berkeley, Public Works – Transportation Division

Shared Electric Micromobility Permit Program – Terms, Conditions, and Application ‐ March 2024

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counsel) and cost of litigation (including all actual litigation costs incurred by City, including

but not limited to, costs of experts and consultants), damages or liability of any kind or

nature whatsoever (hereafter referred to as “Liabilities”), for death or bodily injury to any

person, including without limitation, Operator and its officers, directors, employees,

agents, assignees, and/or Operator’s Shared Electric Micromobility Users, Customers, or

clients, or for damage or destruction of any property of either party hereto or of third

parties, in any manner resulting from, arising out of, relating to, or by reason of any:

(a) act, error, or omission, including both passive and active negligent conduct of

Operator, its officers, directors, employees, Shared Electric Micromobility Users,

Customers, or representatives, agents, servants, sub‐consultants and

subcontractors, independent contractors, and their assigns, and successors in

interest; or

(b) act, error, or omission, including both passive and active negligent conduct, of City

and/or Indemnitees, including without limitation, any act or omission resulting

from, arising out of, or relating to the design, construction, maintenance, repair,

replacement, oversight, management, or supervision of any physical,

environmental, or dangerous condition(s) of public property including the Public

Rights‐of‐Way and of any related improvements, or with respect to the suitability of

the Public Rights‐of‐Way for Operator’s and/or its Shared Electric Micromobility

Users’ or Customers’ intended use.

(2) The rights and remedies of City provided in this section shall not be exclusive and are in

addition to any other rights and remedies provided by law or under this Permit. This

provision will survive expiration or termination of this Permit.

(3) Notwithstanding the foregoing, if Operator/Permittee fails or refuses to defend and

indemnify City and/or Indemnitees from and against any and all Liabilities, with legal

counsel acceptable to City, City shall have the right to engage its own legal counsel, at

Operator’s/Permittees sole cost and expense, for the purpose of the City’s defense. In no

event shall Operator/Permittee agree to the settlement of any Liabilities described herein

without the prior written consent of City.

(H) Waiver/Release of Liability

(1) Operator/Permittee expressly acknowledges and agrees that City would not be willing to

issue this Permit to the Operator/Permittee in the absence of a waiver of liability for

consequential or incidental damages resulting from, arising out of, or relating to the

passive or active negligent acts, errors or omissions of City, its Councilmembers, officers,

directors, partners, agents, and employees, or of any and all persons acting by, through or

under each of them (“Agents”), and

(2) Operator/Permittee expressly assumes the sole and exclusive risk with respect to its

Shared Electric Micromobility business, Devices, equipment, or services authorized

pursuant to this Permit including, without limitation, the use of its services by the parties

with which it contracts for the lease or rental of the Shared Electric Micromobility Devices,

City of Berkeley, Public Works – Transportation Division

Shared Electric Micromobility Permit Program – Terms, Conditions, and Application ‐ March 2024

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or for the servicing and repair of the Shared Electric Micromobility Devices by Operator’s

employees, subcontractors, subconsultants, independent contractors, or agents.

(3) Accordingly, to the greatest extent permitted by law, without limiting any indemnification

obligations of Operator/Permittee or other waivers contained within this Permit, and

without impairing any applicable insurance coverage described herein, as a material part of

the consideration for this Permit, Operator/Permittee hereby fully and forever RELEASES,

WAIVES, AND DISCHARGES any and all claims, demands, rights, lawsuits, and causes of

action, against the City and its Agents for consequential and/or incidental damages

(including without limitation, lost profits), and covenants not to initiate or prosecute any

legal action against City or its Agents, in any forum or tribunal, for such losses or damages,

arising out of this Permit or the uses authorized hereunder, including, without limitation,

any interference with uses conducted by Operator/Permittee pursuant to the Permit,

regardless of the nature or cause, and whether or not due to the passive or active

negligence of City or its Agents, except for the willful misconduct of City or its Agents.

(4) This waiver and release includes, without limitation, any and all claims whether direct or

indirect, known or unknown, foreseen and unforeseen, that may result from, arise out of,

relate to, or in any way be connected with the design, construction, maintenance, repair,

replacement, oversight, management, or supervision of any physical, environmental or

dangerous condition(s) of the Public Rights‐of‐Way and any related improvements, or the

suitability of the Public Rights‐of‐Way for Permittee's or its Shared Electric Micromobility

User’s or Customers’ intended use.

(5) Operator/Permittee further acknowledges that it understands and agrees that it hereby

expressly waives any and all rights and benefits which it now has, or in the future may

have, under and by virtue of the terms of California Civil Code Section 1542, which reads as

follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR

RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE

TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE

MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY”.

(6) Operator/Permittee recognizes and understands that by waiving the provisions of this

section, Operator/Permittee will not be able to make any claims for damages that may

exist, and to which, if known, would materially affect its decision to agree to these terms

and conditions, regardless of whether Operator/Permittee's lack of knowledge is the result

of ignorance, oversight, error, negligence, or any other cause.

(I) Insurance Requirements/Operator’s Liability Not Relieved or Limited/Notices

(1) Unless a written waiver is obtained from the City’s Risk Manager, Contractor must provide

the insurance listed in [Attachment A] SHARED ELECTRIC MICROMOBILITY PROGRAM

INSURANCE REQUIREMENTS and shall name the City as an additional insured on that

policy.

(2) [Attachment A] is attached hereto and incorporated herein by reference. Approval or

purchase of any insurance contracts or policies shall in no way impact or impair Operator’s

Shared Electric Micromobility Permit Program FY2025 Permit

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